State death penalty law faces challenge in federal appeals court

FILE - In this Sept. 21, 2010 file photo, the new lethal injection facility at San Quentin State Prison is seen in San Quentin, Calif. Earlier this year, the U.S. Supreme Court rejected Robert Fairbanks' appeal of his death sentence for the 1985 rape and murder of college student Wendy Cheek. With that rejection, Fairbanks joined at least 14 other death row inmates who have "exhausted" their appeals to state and federal courts and are eligible for execution. Michael Morales, who was within hours of his execution in 2006 and Albert Brown, who was handed his death warrant in 2010 only to have his lethal injection called off a day before he was scheduled to die are also on the list of some of California's most notorious killers. (AP Photo/Eric Risberg, file)

FILE - In this Sept. 21, 2010 file photo, the new lethal injection...

Nearly three years after state voters narrowly rejected repeal of capital punishment, California’s death penalty law faces another challenge Monday as a federal appeals court reviews a judge’s ruling that the state’s system is so plagued with delays and arbitrary actions that it violates the Constitution.

In his July 2014 decision, U.S. District Judge Cormac Carney of Santa Ana noted that condemned prisoners commonly spend 25 years or more awaiting executions or reprieves and said the state was primarily responsible — taking lengthy periods to appoint lawyers, process cases and issue rulings from an overburdened and underfunded legal system.

California has the nation’s largest Death Row, with 749 inmates, and its lowest execution rate, with 13 inmates put to death since 1992. By contrast, out of more than 900 convicted murderers sentenced to death since voters passed the current law in 1978, nearly 100 have died from illnesses, suicides or other causes. Others have had their sentences or convictions overturned.

‘Arbitrary selection’

For most condemned prisoners, “systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death,” said Carney, a 2003 appointee of President George W. Bush.

That delay, Carney said, “has resulted in the arbitrary selection of a small handful of individuals for execution.”

Carney’s ruling applied to only one inmate, Ernest Jones, sentenced to death in 1993 for a rape and murder in Orange County. But it would have statewide application if upheld on appeal, starting with Monday’s hearing before the Ninth U.S. Circuit Court of Appeals in Pasadena.

Other federal courts have rejected lawsuits over inmates’ long periods on Death Row, finding that the prisoners could ease the situation by filing fewer appeals. Attorney General Kamala Harris, in her appeal of Carney’s ruling, takes a more measured approach, arguing that the pace of California’s death penalty review reflects the state’s commitment to justice.

“Everyone involved in this process — counsel for the state, counsel for capital defendants, and the courts themselves — works carefully and methodically to ensure that death sentences are lawfully imposed and carried out only in appropriate cases,” lawyers in her office said in a court filing. A “suitably deliberate pace,” they said, is a safeguard against “arbitrariness and error.”

Major divisions

The appeals court panel of Judges Susan Graber, Johnnie Rawlinson and Paul Watford — all Democratic appointees with moderate records — is facing a potentially momentous decision on an issue that has divided the state and its leaders for decades. But they might not get that far, because the case could run aground on a 1996 federal law that severely limits federal court review of state criminal cases.

The law prohibits a federal judge from overturning a state prisoner’s conviction or sentence unless the state court that ruled against the prisoner used an “unreasonable application of clearly established federal law,” as defined by U.S. Supreme Court rulings.

The high court has interpreted the law to mean that unless it has already ruled on an issue, in a way that conflicts with the last decision by a state court in the prisoner’s case, a federal judge’s hands are tied. The state Supreme Court’s last action in Jones’ current case was to dismiss his appeal without a written opinion in 2009. Unless that was an “unreasonable application of clearly established federal law,” Carney’s ruling might be abruptly overturned.

It all depends on how you frame the question, said Erwin Chemerinsky, dean of the UC Irvine Law School. He said U.S. Supreme Court rulings have “clearly established” that arbitrary executions are unconstitutional — so if that is the issue in this case, Carney’s ruling should be reviewed on its merits. But the court has never decided that a system like California’s leads to arbitrary and unconstitutional executions — and if that’s the defining issue, the courts will probably decide Carney should have stayed out of it, Chemerinsky said.

Robert Weisberg, a Stanford law professor and co-director of the law school’s Criminal Justice Center, had a harsher forecast. If the case reaches the Supreme Court, he said, the justices will quickly dismiss the challenge to the death penalty law and rebuke the lower courts for letting it get that far.

To assert that the system, and the state courts that upheld it, “contradict clearly established Supreme Court law is ludicrous,” Weisberg said.

Judge finds flaws

Jones’ attorney, Michael Laurence, executive director of the Habeas Corpus Resource Center in San Francisco, had a different analysis. When Jones’ case was last before the California Supreme Court, he said, the state’s lawyers never presented arguments on issues of delay and arbitrary executions, and the court never considered the issue. That means there is no contradictory ruling that requires federal court deference or prevents Carney and the higher courts from ruling on the death penalty, Laurence said.

Whatever the outcome, executions in California are unlikely to resume soon. A federal judge ordered a halt in 2006, finding numerous flaws in lethal injection procedures and staff training at San Quentin, and the state has made little progress in repairing the defects. Gov. Jerry Brown recently settled a suit by a pro-death penalty group with an agreement to switch from a three-drug execution procedure to a single lethal drug, but it’s not clear how long the change will take, where the drug will come from or whether the courts will go along.